No. 96-3118

 

Arnold F. Hohn, *

*

Appellant, *

* Appeal from the United States

 v. * District Court for the

 * District of Nebraska.

United States of America, *

* [PUBLISHED]

 Appellee. *

 

Submitted: September 13, 1996 

 Filed: November 4, 1996

 

Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

 

PER CURIAM.

The petitioner in this case, unsuccessful in his effort to have his

sentence set aside under 28 U.S.C. § 2255, seeks review in this court.

Petitioner's appeal, however, will not lie unless we issue him a

certificate of appealability, and such a certificate is not available

unless the petitioner makes a "substantial showing of the denial of a

constitutional right." See 28 U.S.C. § 2253(c)(2).

The petitioner complained to the district court that at his trial the

jury instructions dealing with what it means to use a firearm under 18

U.S.C. § 924(c)(1) did not conform to the principles outlined in Bailey v.

United States, 116 S. Ct. 501 (1995). It seems to us that under these

circumstances a certificate cannot issue, because the petitioner is not

making a
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constitutional claim: He is making a claim to a federal statutory right.

Bailey did no more than interpret a statute, and an incorrect application

of a statute by a district court, or any other court, does not violate the

Constitution. The Constitution does not guarantee that judges will always

be right. It does guarantee, it is true, that persons accused of crimes

will receive due process; but the petitioner makes no due process claim

with respect to the trial judge's actions, and trial errors hardly ever

rise to the level of a due process violation in any case.

United States v. Liguori, 438 F.2d 663 (2d Cir. 1971), on which Judge

McMillian relies in his dissenting opinion, is not to the contrary. The

predicate for that case was that the Supreme Court had on constitutional

grounds invalidated certain statutory presumptions, see id. at 666-67, and

the petitioners were claiming that the statute under which they were

convicted was invalid because it contained an unconstitutional presumption.

See id. at 665. There is no such claim here. The petitioner does not

maintain that § 924(c)(1) is unconstitutional or that it was

unconstitutionally applied to him. He maintains only that the statute was

wrongly applied to him.

For the foregoing reasons, we deny the certificate.

McMILLIAN, Circuit Judge, dissenting.

Arnold F. Hohn appeals from the district court’s dismissal with

prejudice of his 28 U.S.C. § 2255 motion claiming the benefit of Bailey v.

United States, 116 S. Ct. 501 (1995). Section 102 of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214,

amended 28 U.S.C. § 2253(c) to require a “substantial showing of the denial

of a constitutional right” before a certificate of appealability may issue.

The court denies Hohn a certificate. I must respectfully dissent.
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Background

After a confidential informer told police Hohn was a high-level

methamphetamine dealer, they investigated and obtained a no-knock warrant.

When the police arrested Hohn in his living room, they found one gram of

methamphetamine in his wallet. They also went to the kitchen where they

found 15.8 grams of methamphetamine, three loaded pistols approximately one

foot from the drug, and another firearm. In Hohn’s bedroom the police

found 3.1 grams of methamphetamine in a cigarette package and another

loaded pistol approximately two feet from the package. Finally, in another

bedroom they found drug paraphernalia and a gun case with shotguns and

rifles. Cindy Vandry arrived at the house during execution of the warrant.

She had twice purchased methamphetamine from Hohn at his home, and on those

occasions she had observed “a substantial amount of currency in the

bedroom.”

The government charged Hohn with possession of methamphetamine with

intent to distribute it, using and carrying fifteen firearms in relation

to the methamphetamine offense, and being a felon in possession of

firearms. He stood trial, admitted possession of some of the

methamphetamine, admitted he owned the firearms as an avid gunsmith and

hunter, disputed the police version of the location of some of the

firearms, and testified he believed he could legally possess the firearms

because his attorney had told him that his 1974 juvenile conviction for

malicious destruction of property did not count as an adult felony.

At trial, counsel urged substitution of “for the purpose of” in place

of “available to aid in the commission of” in the verdict director for the

firearms “use” charge. The jury convicted Hohn on all counts. He did not

raise the instructional issue in his pre-Bailey appeal. This court

affirmed. United States v. Hohn, 8 F.3d 1301 (8th Cir. 1993).
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In his § 2255 motion, Hohn argued: (1) his conduct was not a

violation of 18 U.S.C. § 924(c)(1) as interpreted by Bailey; a fundamental

miscarriage of justice would result unless the court addressed the issue;

(3) he should not be penalized for not raising the issue on direct appeal

because he relied on years of Eighth Circuit precedent; (4) denial of a

remedy would show “a lack of due process in the judicial system,” quoting

United States v. Loschiavo, 531 F.2d 659, 666 (2d Cir. 1976) (affirming

vacation of conviction on change-in-law ground not raised on direct

appeal); and (5) he was prejudiced by the jury instruction that said no

affirmative firearms use was required but that availability of a firearm

was adequate for a guilty verdict.

The government responded that Bailey did not aid Hohn because

evidence supported a carrying conviction. It admitted the verdict

directing instruction was erroneous under Bailey, and Hohn was not carrying

a firearm when officers executed the warrant. It argued, however, that the

kitchen firearms, “within arm's reach of the methamphetamine,” were in

holsters and supported the inference that at some time Hohn “entered his

residence and placed his belongings, which included the methamphetamine and

firearms onto the counter.” The government concluded it was obvious Hohn

had carried the firearms during his drug trafficking activities, and the

instructional error was harmless.

In reply, Hohn argued that the instruction was error under Bailey,

citing United States v. Webster, 84 F.3d 1056, 1060, 1065-66 (8th Cir.

1996) (permitting brief on Bailey after initial submission of direct appeal

and reversing because plain error in pre-Bailey jury instruction permitted

conviction for “mere presence and ready availability” of firearm where

defendant admitted purchase of a firearm for his protection). He also urged

that the government’s methamphetamine-within-arm's-reach-of-firearms

argument was insufficient under United States v. White, 81 F.3d 80,
 For that reason, I also disagree with the court’s holding

1

that Bailey challenges cannot be raised in a § 2255 motion after a

plea of guilty. Bousley v. Brooks, No. 95-2687, 1996 WL 560214, at

*3-4 & nn.2-4 (8th Cir. Oct. 3, 1996). The better position is, in

my opinion, United States v. Barnhardt, 93 F.3d 706, 708-09 (10th

Cir. 1996) (applying Bailey retroactively in second § 2255 motion

after defendant pleaded guilty) (collecting Bailey cases).

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83 (8th Cir. 1996) (affirming “carrying” conviction on direct appeal and

saying government must prove that the defendant bore the firearm on or

about his person during and in relation to a drug trafficking offenses),

quoting Bailey’s language, “the inert presence of a firearm, without more,

is not enough to trigger § 924(c)(1).” 116 S. Ct. at 508 (discussing

different meanings of “use” - active employment, storage, placement for

active use). He included a copy of Cynthia Vandry’s testimony that she saw

the rifles in the gun case but no handguns when she was at Hohn’s house.

The district court noted Hohn had not raised the Bailey claim on

direct appeal, found he had waived it, and dismissed the § 2255 motion with

prejudice, quoting United States v. McKinney, 79 F.3d 105 (8th Cir. 1996)

(2-1 decision) (holding Bailey issue waived on direct appeal because

McKinney did not challenge previous cases, object to the instruction, or

argue issue in opening brief).

Discussion

I dissent because I believe the Due Process Clause of the Fifth

Amendment does not permit federal convictions for conduct that does not

violate a federal statute.1

Congress must define federal criminal offenses. United States v.

Hudson, 11 U.S. (7 Cranch) 32, 33 (1812). Judicial construction of a

statute “is an authoritative statement of what the statute meant before as

well as after the decision of the case giving rise
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to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-

13 (1994) (Rivers) (footnote omitted). Under these two principles, courts

have granted post-conviction relief after changes in the law. See, e.g.,

Davis v. United States, 417 U.S. 333, 346-47 (1974) (§ 2255 proper when law

changes so that conviction and punishment are for act the law no longer

makes criminal) (change in interpretation of selective service regulation);

United States v. Dashney, 52 F.3d 298, 299 (10th Cir. 1995) (applying new

interpretation of “financial structuring” offense in § 2255 action after

defendant had served sentence to prevent complete miscarriage of justice);

Dalton v. United States, 862 F.2d 1307, 1310 (8th Cir. 1988) (finding new

interpretation of mail fraud statute applicable but affirming because no

prejudice shown under standard that trial error worked to § 2255 movant’s

“actual and substantial disadvantage, infecting [the] entire trial with

error of constitutional dimensions,” citing United States v. Frady, 456

U.S. 152, 170 (1982) (emphasis in original)); Ingber v. Enzor, 841 F.2d

450, 454-55 (2d Cir. 1988) (applying new interpretation of mail fraud

statute in § 2255 action and excusing failure to raise the claim under

earlier interpretation).

The Second Circuit invoked constitutional principles when it

confronted four § 2255 challenges to drug convictions in the wake of the

Supreme Court’s invalidation of statutory presumptions. The court relied

on 

the simple and universal rule that a judgment in a criminal

case in which the prosecution has offered and the record

discloses no proof whatever of various elements of the crime

charged has a fatal constitutional taint for lack of due

process of law. . . . We must examine the principles involved

in the constitutional ruling under consideration and decide

whether, upon "considerations of convenience, of utility, and

of the deepest sentiments of justice," the judgments of

conviction were so "tainted by some fundamental unfairness

within the orbit of constitutional law" that we cannot allow

them to stand.
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United States v. Liguori, 438 F.2d 663, 669 (2d Cir. 1971) (internal

citation omitted).

In post-Bailey § 2255 cases, the issue is not advance notice that

conduct is criminal (the familiar void-for-vagueness claim), but delayed

notice that conduct is not criminal (change-of-law claim under Rivers

rationale). Because Bailey represents such a clear break with precedent

regarding the definition of "use" under § 924(c)(1), Hohn had cause for

failing to appeal the denial of his objection to the verdict director.

United States v. Wiley, 922 F. Supp. 1405, 1411 (D. Minn. 1996) (Magnuson,

C.J.); see also Dyer v. United States, 23 F.3d 1421, 1423-24 (8th Cir.)

(rejecting change of law in another circuit as cause), cert. denied, 115

S. Ct. 136 (1994); Dalton v. United States, 862 F.2d at 1310 (finding cause

after new interpretation of mail fraud statute). 

Conclusion

I conclude that depriving persons of the benefit of the delayed

notice that conduct is innocent violates Due Process by tolerating

convictions for conduct that was never criminal. Under that proposition,

a post-Bailey § 2255 motion presents a constitutional question as required

by amended § 2253(c)(2). I also conclude Hohn’s case presents a

“substantial showing of the denial of a constitutional right.” Accordingly,

I would grant a certificate of appealability.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.